January 1, 1900

by Stephen M. Eisdorfer

The broken down barn on your property may be an inconvenience -one more thing to be removed before beginning construction. It may even be an asset-an opportunity to construct a charmingly unconventional house or garage. Or it may be an unanticipated legal headache that will upset all of your development plans.

Historic Preservation Legislation

The National Historic Preservation Act of 1966 and the New Jersey Registration of Historic Places Act of 1970 establish the National Register of Historic Places and the New Jersey Register of Historic Places. Registration is voluntary and makes a designated building or area eligible for various funding programs. It is not only intact buildings which may be eligible for registration, but also ruins, prehistoric archeological sites, and historic landscapes.

Neither the federal nor the state statute places any constraints on the owner of a registered building or area. The owner is free to renovate it, modify it or demolish it. Buildings or sites that are registered or eligible for registration may, however, be subject to other limitations. For example, prior to any federal action, including the issuance of any federal permit, such as a Corps of Engineers individual wetlands permit, the federal agency is required by law to conduct a review of potential impacts upon buildings or sites eligible for registration on the National Historic Register. This review, known as ãSection 106 review,ä can take weeks or months, and may result in the permit being denied or granted only subject to conditions. Federal actions subject to Section 106 review include highways constructed with federal funds and certain individual wetlands permits issued by the DEP. In addition, state law may require that an applicant for permits, such as wetland permits or DOT highway connection permits, demonstrate that he or she will avoid or ameliorate any impact on buildings or sites on the State or National Registries or eligible for registration.

Local Ordinances May Apply

Local ordinances may impose additional restrictions. In 1991, the New Jersey Legislature amended the Municipal Land Use Law (MLUL) to authorize municipalities to designate and regulate historic sites and buildings. Municipalities that wish to designate or regulate historic districts and buildings are supposed to establish historic preservation commissions and adopt historic preservation plans. Based upon those plans, the municipality may adopt zoning provisions which designate particular districts or buildings and regulate their use.

When a development application affecting a designated historic district or building is submitted, the application is referred for review to the local historic preservation commission. The historic preservation commission may recommend that the application be denied, or that it be granted only with conditions to eliminate or ameliorate the impact of the development on the designated building or district. According to the State Office for Historic Preservation, 165 municipalities have now adopted ordinances creating historic preservation commissions.

In addition, a number of municipalities revised the environmental impact statement provisions of their zoning ordinances to require that applicants for development approval document historic buildings and areas, as well as the extent to which the development will affect those buildings or areas. Even if these ordinances do not directly regulate use of these buildings or areas, they create opportunities for opponents of the development to contest the application.

Overcoming The Challenges

Some attempts to restrict development on grounds of impact on historic sites or areas may not be legitimate.

For example:

• The building or site may not, in fact, be worthy of preservation. Where state or federal law is involved the building or site may not be eligible for listing on the National or State Registries. The federal government has issued an elaborate set of technical standards for buildings that can be included in the National or State Registries.
• The design may have properly minimized the impact of the development upon the historic building or site.
• The local ordinance may not be enforceable. New Jersey courts have held that, to be enforceable, local ordinances must strictly conform to the requirements of the MLUL. Other forms of local regulation are unlawful.
• The restrictions may be so oppressive that they are an unconstitutional taking of private property without just compensation.

Strategies To Remember

The regulations governing historic preservation are complex and, if not carefully complied with, can delay or prevent construction. Prior to undertaking a development, the prudent builder should ascertain whether there are buildings or areas on the property that are on National or State Registries, or included in the local historic preservation plan. Builders should determine whether they are subject to historic preservation review, either because the property is subject to a local historic preservation ordinance or because the development requires permits that entail state or federal historic preservation review. Builders should then make an early and informed decision as to whether they can live with the governing historic preservation regulation or must fight it.

Stephen M. Eisdorfer is also a partner within the Land Use Division of Hill Wallack. A Member of the Board of Directors of the New Jersey State Bar Association's Land Use Section, he concentrates his practice in land use litigation, including Mount Laurel litigation and litigation involving the civil rights statutes.